Tasse v. Kindt

125 Wis. 631 | Wis. | 1905

Dodge, J.

"We shall find it unnecessary to consider any ■of the errors assigned, except an instruction in the following-words :

“There is some testimony in the case tending to show that the plaintiff, in the matter of the sale of said land, was in the ■employ of the parties who purchased the land. . That fact of itself will not defeat the claim of the plaintiff. You may •consider that testimony, however, so far as it may have a bearing upon the questions which you are to determine.”

An agent who undertakes the duty of making a sale for another, or performing a duty in that connection involving diligence in promotion of the employer’s interest, cannot recover commission if, without the seller’s knowledge, he also be employed upon compensation to work in the interest of the purchaser. Herman v. Martineau, 1 Wis. 151, 158; Stewart v. Mather, 32 Wis. 344, 354; Meyer v. Hanchett, 39 Wis. 419; S. C. 43 Wis. 246. The principle involved is the same as that supporting the rule that one cannot himself be a purchaser of property which he sells in a fiduciary capacity, and is that average human nature is too frail to resist temptation to yield to one’s own interest, when in conflict with that of an employer or cestui que trust. True, there are many,cases where the character of the employment of the selling agent is such that compensation from the purchaser cannot affect his fidelity in the performance of Ms duty to tlie seller, as where he is a mere middleman, or employed only to produce a customer at a fixed price. Such, however, was not the present case. Plaintiff was employed to find a purchaser at the best price obtainable, according to his complaint and some of the testimony; and while defendant had at one time authorized, for a limited period, a sale at $2,000 per acre, that time had long since expired, and there was evidence that, at the very time of the negotiations with the Filer & Stowell Company, defendant was urging his agent, the plaintiff, to endeavor to obtain $2,300. In this situation it certainly cannot be said that an employment by the Filer & Stowell Company to work in their interest might not be inconsistent with plaintiff’s duty to search for a customer at a higher price than they were willing to give. It offered him temptation to relax diligence in such efforts, in the hope that, no higher offer being obtained,, the property might be sold to the parties who were willing to pay him in the event of such result. We, of course, do not mean to say that the evidence in this case established such an employment by Filer & Stowell Company as did, or even might, affect plaintiff’s diligence; but that was a question of fact upon which the jury were entitled to pass,' and they should have been instructed that, if they found such an agreement existed, it would debar plaintiff from recovery against the defendant. To tell them that such an agreement of itself could not defeat his action was erroneous, and might well have been prejudicial to the appellant.

By the Court. — Judgment and order appealed from are reversed, and cause remanded for new trial.